Gender-responsive public procurement

What is gender-responsive public procurement

Gender equality is a fundamental value of the European Union (EU). Promoting gender equality in all its activities is one of the EU’s tasks, required by the treaties ([1]). The EU’s gender equality policy objectives are wide-ranging, and include fostering equal economic independence for women and men, closing the gender pay gap, advan­cing the gender balance in decision-making, ending gender-based violence and promoting gender equality beyond the EU.

To achieve gender equality, EU institutions and Member States should apply gender mainstreaming to all their policies, laws and budgets.

Gender budgeting is a gender mainstreaming tool to achieve equality between women and men by focusing on how public resources are collected and spent ([2]). The gender dimension should be integrated into all phases of the budgetary cycle, from the budgetary proposals (ex ante) and throughout the spending itself (ex nunc) to the evaluation and control of the money actually spent (ex post).

An important element of public spending or expenditure into which the gender dimension can be integrated is public procurement contracts. In this way, GRPP can be considered a means of implementing gender budgeting.

EU institutions and Member State government departments or regional and local authorities ‘are important consumers whose procurement practices can (re)produce, increase or diminish societal (in)equality’ ([3]). When public authorities purchase supplies, works and services from companies, they can and should design public procurement processes and practices in a way that promotes gender equality; this is what GRPP is.

Context and purpose

EU context

According to the EU gender equality strategy for 2020–2025, ‘[t]he Commission’s guidance on socially responsible public procurement will fight discrimination and promote gender equality in public tenders’ ([4]). This is what is known as GRPP.

Socially responsible public procurement (SRPP), which GRPP is part of, is supported by the EU legal framework for public procurement ([5]).

Applying GRPP to promote gender equality from the beginning of the procurement cycle means asking questions such as: do the services, supplies or works I intend to buy have different implications for women and men, in all their diversity? Do women and men, in all their diversity, have different needs in relation to the services, supplies or works? Which social and labour laws and collective agreements that promote the equality of women and men at work are applic­able to the contract? In this sense, the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) defines GRPP as ‘the selection of services, goods and civil works that considers their impact on gender equality and women’s empowerment’ ([6]).

Purpose

Public procurement has great potential to promote gender equality.

Integrating the gender perspective into public procurement contracts and using them to promote equality between women and men form part of the efforts to achieve sustain­able and socially responsible procurement ([7]).

Integrating the gender perspective into the public procurement cycle and contracts can lead to improved efficiency in government spending ([8]).

GRPP as a gender mainstreaming method and tool

In the European Union, contracting authorities can decide to use public procurement to achieve social outcomes, which can include gender equality, but these are not mandatory.

Mainstreaming gender by integrating a gender perspective into public procurement can ensure equitable access to public contracts and provide benefits by diversifying the supply chain. Hence GRPP can be considered a method of gender mainstreaming.

GRPP plays an important role in implementing other gender mainstreaming initiatives, such as gender budgeting. An important step to raise awareness about the links between GRPP and other gender mainstreaming methods and tools would be to recognise and make GRPP explicit in the legal and policy frameworks governing these other initiatives.

For guidance on how to implement GRPP in practical terms, the European Institute for Gender Equality (EIGE) will produce a toolkit for contracting authorities and gender equality practitioners. The toolkit will explain step by step how to plan and implement GRPP.

The EU legal and policy framework

GRPP has a basis in the financial regulation (Regu­lation (EU, Euratom) 2018/1046) ([12]) and the EU legal framework for public procurement. The legal framework has evolved into a comprehensive set of rules and principles governing the award of public contracts ([13]). The three 2014 procurement directives aim to facilitate greater strategic use of procurement, including for the advancement of social objectives.

The European Commission explicitly states in its gender equality strategy for 2020–2025 that ‘[t]he Commission’s guidance on socially responsible public procurement will fight discrimin­ation and promote gender equality in public tenders’ ([14]). As one of the first deliverables of the strategy, the Commission has proposed binding measures on pay transparency under the draft directive on pay transparency, which specifically addresses equal pay and the pay gap in the context of public procurement (in Article 21) ([15]).

In addition, GRPP is part of government spending and thus forms part of gender budgeting. Gender budgeting has a firm basis in the EU commitment to gender mainstreaming expressed in the Treaty on the Functioning of the European Union (TFEU) ([16]). The European Parliament and the Council of the European Union have repeatedly called on the EU and its Member States to develop and implement gender budgeting ([17]).

Application of GRPP at different levels

GRPP can be applied at all levels of government. Examples of GRPP that can be implemented by contracting authorities at all levels, including EU institutions, include the following.

• In a contract for cleaning services, a government department consults with cleaning companies and their staff in order to determine the scope for improving work–life balance for cleaners (e.g. cleaning could be carried out during the working day rather than in the evenings).
• In a contract for uniforms, an emergency services provider examines the entire supply chain to ensure that all workers receive a fair wage, human and employment rights are respected and the uniforms are suitable and comfortable for both women and men employees to wear.
• In a contract for social housing, a local authority specifically considers how planning and design may affect women and men differently. This could include safety issues (e.g. lighting and visibility), access to transport, employment and childcare and the height or layout of facilities. In addition, during the procurement process, the authority aims to create employment and training opportun­ities for both women and men, including single parents and those seeking to retrain or re-enter the workforce.
• A state agency holds market engagement events which encourage businesses and social enterprises owned and operated by women to participate in tenders, for example by explaining procedures, considering feedback and ensuring that the structure and size of contracts is appropriate to encourage maximum participation.
• The European Commission launches a tendering procedure to commission a study on the impact of the COVID-19 pandemic on the increase in homelessness among women suffering domestic violence. Selection criteria include prior experience in conducting gender studies. Award criteria require the team conducting the study to have specific expertise in homelessness from a gender perspective.

Enabling factors 

Effective implementation of GRPP requires political commitment matched with technical capacity for gender mainstreaming. Engaged leadership is of particular importance in ensuring that gender equality is integrated into the public procurement cycle and that public procurement outcomes benefit women and men equally ([18]).

Key enabling factors of GRPP include:

• political will and political leadership;
• high-level commitment from public administrative institutions and structured collabor­ation between bodies/departments in charge of public procurement and those responsible for gender equality;
• improved technical capacity of civil servants;
• civil society awareness and involvement;
• availability of sex-disaggregated data to measure the impact of public contracts on women and men.

How does GRPP work?

Promoting equality between women and men can be integrated into public procurement contracts, for example in the selection criteria (by excluding discriminatory companies), the contract award criteria (by including gender as a sub-criterion linked to the subject matter when evaluating the quality of the offer) and the contract performance conditions (through the obligation to take the gender perspective into account when carrying out the commissioned tasks).

GRPP can focus on the content of the contract: the measures that ensure that the end result takes into account the situation of both women and men.

To a certain extent, GRPP can also focus on the promotion of equality between women and men among contractors ([20]).

Overall, it is important to use the most inclusive language possible, referring to both genders (she or he, businesswoman/businessman, etc.). This makes contractors aware that their target audience (for a study, campaign, etc.) usually consists of both women and men.

Opportunities for GRPP under the 2014 pro­curement directives and the financial regulation are listed below for each of the stages of procurement, along with a box detailing an example ([21]).

Pre-tender stage

Prior to launching a tender, contracting authorities undertake various preparatory activities. This is an important stage for the implementation of GRPP, as it determines the way in which the authority will interact with the market to obtain the supplies, services or works it needs.

During this stage, it is necessary to reflect on whether the contract has a gender perspective ([22]). What is the ultimate target audience of the performance of this contract and does it consist of both women and men? Are there differences in the situations of those women and men ([23])?

It is important that the criteria and conditions relating to the promotion of equality between women and men be linked to the subject matter of the tender and not be disproportionate.

If the tender involves an area where there are differences in the situation of women and men, a request to take this into account should ideally be included in the aims of the tender.

Care should be taken with respect to the procurement principles of transparency, proportionality, equal treatment and non-discrimin­ation to ensure that activities do not prejudice the procedure, for example by giving any one operator an unfair advantage or disadvantage.

At the pre-tender stage, opportunities for GRPP arise:

• in the needs assessment and consultation with potential bidders, users, gender equality bodies, consultants, social partners and civil society organisations to identify the gender impacts of the contract (preliminary market consultations);
• when defining the subject matter of the contract to include gender aspects, in both the scope and the title of the tender;
• when choosing a procedure which best allows GRPP elements to be addressed;
• when deciding whether to use reservations or lots that might facilitate greater participation of women-owned or operated businesses (especially small and medium-sized enterprises (SMEs) and social enterprises);
• in the application of the light regime (the special regime set out for social and other specific services) in the procurement of social, health and education services, including criteria in relation to pay, qualifications and gender balance of the staff performing the contract, as well as quality criteria that promote better work–life balance;
• when preparing tender documents using gender-inclusive language and highlighting GRPP aspects.

Tender stage

Contracting authorities may choose to include one or more criteria addressing GRPP in their tenders. The type of criteria that can be applied at each stage, as well as the evidence that can be requested, is regulated by the directives.

All criteria must be linked to the subject matter of the contract, meaning they must be specific to the goods, services or works that the public body is purchasing. They cannot concern general policies or practices of the bidding company.

At the tender stage, GRPP can use the following tactics:

• applying exclusion grounds to reject bidders who have violated equality obligations or who have a poor record on gender equality issues;
• applying selection criteria to choose bidders with the capacity to implement GRPP;
• devising technical specifications that reflect gender aspects of the contract, where possible;
• applying award criteria that target specific gender issues in the delivery of the contract and encourage innovation from bidders;
• requesting third-party labels or certifications, which attest to performance on gender equality or related areas.

Post-tender stage

At the post-tender stage, public bodies must apply the contract performance conditions that they have set out in the tender documents and agreed with the successful bidder. Under Art­icle 70 of Directive 2014/24/EU, these may include social or employment-related consider­ations. Recital 103 of Directive 2014/25/EU states:

Contract performance conditions might … be intended to favour the implementation of measures for the promotion of equality of women and men at work, the increased participation of women in the labour market and the reconciliation of work and private life …

As with criteria applied during the tender, contract performance conditions must be linked to the subject matter of the tender. This means that they cannot require a company to implement general changes in its workforce or corporate practices.

Stakeholder consultations can also happen at the post-tender stage and are an appropriate tool for assessing a certain contract or policy, or forming partnerships for delivery.

At the post-tender stage, opportunities for GRPP include:

• applying contract performance conditions which mandate specific actions related to gender equality;
• setting up monitoring and reporting on GRPP clauses, including the use of third-
• party audits where appropriate;
• requiring GRPP clauses to be applied by subcontractors;
• enforcing compliance with GRPP clauses by applying contractual remedies;
• collecting statistics on GRPP, including percentage of contracts awarded to women-owned businesses, gender pay gap, etc.

Support structure

Directive 2014/24/EU, on the governance of pub­lic procurement processes, provides a support structure for GRPP. It addresses enforcement, national reporting and statistical information, and administrative cooperation.

Enforcement (Article 83)

Member States are required to put in place systems to monitor the application of procurement law and to support contracting authorities in its application. No more than once every 3 years, the Commission can request national reports on the implementation of strategic public procurement ([29]), which could include GRPP.

Challenges

The focus of enforcement activities, as well as the monitoring by the Commission, tends to be on the application of mandatory aspects of the directives (e.g. advertisement or correct use of procedures) and not on SRPP, GRPP or other voluntary aspects. So far, there is little official information on the implementation of SRPP and GRPP, outside of a limited number of case studies.

National reporting and statistical information (Article 85)

Member States are required to cooperate with the Commission to collect statistical information on tenders both above and below the EU thresholds. Statistics may include details of SRPP and GRPP, which would allow the product/service sectors and types of procedures where they are most commonly implemented to be mapped. Further development of this requirement, for example to include sex-disaggregated data, including the percentage of women-owned businesses succeeding in public tenders, could support GRPP.

Challenges

The level of detail in statistics collected under this requirement is unlikely to allow for effective mapping of SRPP and GRPP. These aspects are implemented via tender documents and contract clauses, but are not apparent in contract or award notices.

The availability of sex-disaggregated data on public contracts is currently very limited. This makes it difficult both to map the gender impact of public spending and to report on the effectiveness of GRPP where implemented.

Administrative cooperation (Article 86)

Article 86 provides for mutual assistance / information sharing between Member States on a number of topics, including the exclusion grounds and abnormally low tenders. The networks/systems put in place for this could also support the sharing of information on SRPP and GRPP.

Challenges

Information sharing on SRPP and GRPP is largely facilitated by voluntary networks (such as the Procura+ network ([30])) rather than the more official channels set out under Article 86. There are also a number of expert groups set up by the Commission, some of which consider SRPP within the scope of their work.

Why is GRPP important?

GRPP can contribute to sustainable and inclusive growth in the European Union

GRPP constitutes procurement that promotes gender equality through the goods, services or works being purchased. Public buyers are major investors in the EU, spending 14 % of its GDP ([31]). Public buyers can decide to take measures to promote equality between women and men among those performing the ­contract.

Gender equality is not only a fundamental human right: achieving gender equality also brings tremendous socioeconomic benefits. Gender equality has strong, positive impacts on GDP per capita, which grow over time. Therefore, gender equality is a highly relevant policy measure for fostering economic growth. Improving gender equality could lead to an increase in EU GDP per capita of 6.1–9.6 % by 2050, amounting to EUR 1.95–3.15 trillion ([32]).

GRPP can contribute to boosting the long-term competitiveness of the EU economy

GRPP as a tool to apply gender equality measures could lead to an increase in the potential productive cap­acity of the economy and better value for money. Following these developments, the EU would be able to produce more goods and services domestically, and also become more competitive in international markets ([33]).

It would lead to improvements in the trade balance: EU exports would increase by 1.6–2.3 % and imports would decrease by 0.4–0.7 % by 2050 ([34]). Thus, it would help to maintain international trade as one of the key engines of EU growth, in line with the new industrial strategy for Europe ([35]).

GRPP can contribute to closing the gender gap and creating inclusive jobs

GRPP can entail state agencies and contracting authorities at all levels holding market engagement events which encourage businesses and social enterprises owned and operated by women to participate in tenders, for example by explaining procedures, considering feedback and ensuring that the structure and size of contracts are appropriate to encourage maximum participation. During market pre-consultations, potential bidders, including small-sized ones, can meet and decide to create a consortium to respond jointly to a tendering procedure or to participate as subcontractors.

If through these measures more women join the labour force, they are likely to find employment and make substantial contributions to the economy. Such a move would contribute to increased earnings and reduced wage gaps for women.

The mandatory social clause, any social considerations – in particular relating to employment and training – included in award criteria or contract performance clauses, and reserved contracts represent powerful tools to increase job opportunities for (women) workers at a disadvantage and to reduce the gender pay gap. Reducing the gender pay gap can also play an important role in attracting more women to the labour force. With reserved contracts, it is also possible to promote the social and professional integration of women who suffer multiple forms of discrimination (women with disabilities, migrant women, long-term unemployed women, etc.). While this provision is being used more and more to promote the social and professional integration of disabled or disadvantaged workers, gender aspects are often neglected and it is not common practice to collect data disaggregated by sex.

GRPP is good and fair public procurement

GRPP provides an important opportunity to lever­age public spending to pursue a fairer allocation of economic resources and improve living standards for both women and men. Promoting fair working conditions throughout the supply chain would improve the situation of women and men living in non-EU countries, too. This can only be achieved when principles such as performance orientation, transparency, accountability and participation are included with an integrated gender perspective as part of modern standards of public financial management ([36]).

Integrating a gender perspective into public procurement can broaden and diversify the pool of bidders, for example by ensuring that contract opportunities are easily accessible to all potential suppliers, particularly SMEs, including those owned by women or people from ethnic minorities, as well as businesses for people with disabilities, which may have greater difficulty accessing such opportunities.

Reserved contracts or contract performance clauses may be of help here. ‘Reserving’ a contract means that specified businesses can bid for that particular contract. This does not mean that public authorities can favour these spe­cified businesses generally.

In science, technology, engineering and math­ematics (STEM), reaching out to the widest possible range of contractors – including, for ex­ample, businesses owned by women – may help to increase the participation of women in STEM.

In sectors dominated by women (e.g. care and social services) GRPP could help reduce barriers for men willing to access these contracts: gender equality is not just for women, it is about rebalancing, too.

GRPP can contribute to facilitating and strengthening institutionalisation of gender mainstreaming

Introducing the integration of a gender perspective in the work (i.e. at the operational level) of public contracting authorities contains a significant opportunity for institutional change in their strategies, objectives and activities. It requires good collaboration between public procurers and gender equality bodies.

Such collaboration can contribute to increasing individual and institutional capabilities regarding promoting gender equality. It can also help in improving internal policies (e.g. hiring and promotion of personnel) and working conditions (e.g. by considering work–life balance for parents and carers), and lead to better tailored and high-quality services.

Challenges under EU procurement law

The EU legal framework is faced with several challenges in the implementation of GRPP:

• a lack of mandatory provisions;
• uncertainty regarding some existing rules;
• the absence of monitoring and reporting requirements.

More broadly, the promotion of gender equality as a legitimate objective is currently lacking within public procurement policy at both the EU and the national levels. This means that many public bodies are not yet aware of the possibility of addressing gender issues through procurement. Also, there might be a need for practical support for integrating a gender perspective into public procurement. EIGE will produce a toolkit for putting GRPP into practice.

Possible new perspectives for GRPP

Under EU procurement law, reservations in public procurement do not explicitly relate to women-owned or women-managed businesses. Directive 2014/24/EU and the financial regu­lation only allow for two types of reservations: restricting competition (i) to economic oper­ators whose mission is the social and professional integration of disadvantaged workers and workers with disabilities (Article 20 of Direct­ive 2014/24/EU) and (ii) in contracts for social, health and cultural services, to organisations which have a public service mission and meet certain governance requirements (Article 77 of Directive 2014/24/EU). Sole sourcing is only possible in certain exceptional circumstances where it is not possible to hold a competition, and cannot be justified based on the desire to increase spending with certain types of businesses.

US federal procurement law provides for both set-asides and sole sourcing from women-
owned small businesses. A set-aside award is a contract in which only certain contractors may compete, whereas a sole-source award is a contract awarded without competition.

In that regard, the EU legal framework offers less support than US federal procurement law when it comes to affirmative action for women-
owned businesses. However, such policies are unlikely to work in the absence of broader capacity building for women-owned businesses in relevant sectors to participate in public ­tenders.

UN Women uses GRPP programmes to leverage market segments of women-owned businesses. The underlying principles of the UN Women procurement process include best value for money, fairness, integrity and transparency, effective competition and the best interests of UN Women.

For UN Women, GRPP begins with understanding the barriers and challenges preventing women-owned businesses from accessing and fully participating in the corporate supply chain. It requires a commitment from top-level management to make GRPP an integral part of the firm’s business practices and culture.

Should new legislation for the EU legal framework be developed, it could be of interest to consider how UN Women puts the ‘best value for money’ principle first in the procurement process. This principle enables the consider­ation of social (including gender-related), economic and environmental policy objectives in the procurement process.

It could also be of interest to consider how UN Women understands gender equality as one of the key aspects of effective competition, and in full respect of the right of women to access the EU market.